Friday, March 24, 2006

When President Bush signed the reauthorization of the USA PATRIOT Act earlier this month, he attempted to modify the carefully crafted piece of legislation through his own signing statement. He added a comment to the effect that he felt no obligation to keep Congress informed of the FBI's use of its expanded powers under the act. That was in direct contravention of provisions in the act that required reports to Congress about how often the FBI uses its new powers, in what situations. The reports are due from the executive branch to Congress by dates certain. There was a big signing ceremony with a political statement from the president about the law as a tool against terror. But after the guests and press left, the White House quietly appended this executive statement to the signed legislation:

Today, I have signed into law H.R. 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005," and then S. 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006." The bills will help us continue to fight terrorism effectively and to combat the use of the illegal drug methamphetamine that is ruining too many lives.

The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

The executive branch shall construe section 756(e)(2) of H.R. 3199, which calls for an executive branch official to submit to the Congress recommendations for legislative action, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as he judges necessary and expedient.

Last week, the USA PATRIOT Improvement and Reauthorization Act of 2005 was signed into law. I was one of ten Senators who voted against this legislation. As a co-author of the original PATRIOT Act, and as someone who supported reauthorizing an improved version of the Act, this was a difficult vote. The legislation enacted last week contains several “sunshine” provisions that I proposed to facilitate oversight and ensure some measure of public accountability for how the Government uses its powers. Regrettably, other provisions fell short of what the American people expected and deserved.

I would have liked to have voted for the provisions that I felt improved the law, and against the provisions that give the government too much power with too little accountability. But that is not the way the legislative process works. When it is time to vote, we have to vote the whole bill “up or down.” So, with some regret, I voted against the defective reauthorization legislation.

As I said in a floor statement on March 2, the defects in the reauthorization legislation are particularly dangerous because we currently have an Administration that does not believe in checks and balances and prefers to do everything in secret. We know that the Bush-Cheney Administration has engaged in secret, warrantless wiretapping of Americans’ emails and telephone calls contrary to the FISA law; we know that it attempted to rush the Dubai Ports deal through in secret, without following legally required review procedures; and we have reason to suspect that it has secretly engaged in extraordinary rendition and created conditions for torture of prisoners, again contrary to law.

I also remarked on the President’s claims that he need not fulfill his constitutional responsibility to faithfully execute the laws but can pick and choose among the laws he decides to recognize. Confronted with claims of inherent and unchecked powers, I concluded, the restraints we were able to include in this reauthorization of the PATRIOT Act were not sufficient.

It took no time at all for the Administration to prove me right. In the very act of signing the reauthorization bill into law, the President signaled that he intends to follow that law only insofar as it suits him, and to ignore its minimal requirements of public accountability. Sections 106A and 119 of the Act requires the Justice Department’s Office of the Inspector General to perform comprehensive audits of the effectiveness and use, including any improper or illegal use, of two investigative authorities provided to the government by the original PATRIOT Act. These audits must be presented in unclassified form, although a classified annex may be included, and must be submitted to the Judiciary Committees of the House and the Senate as well as the Intelligence Committees.

Sections 106A and 119 have been a part of this reauthorization legislation since last November, when the first version of the House-Senate conference report circulated. During the months of negotiation that followed, they remained unchanged. Never, during all that time, did the Administration raise any objection to these provisions. To the contrary, it called on Congress to pass the conference report without changes, and attacked the bipartisan group of Senators who held out for further improvements.

But when the compromise crafted by Congress reached the President’s desk, there was an ambush waiting. In his signing statement, the President declared that he would construe sections 106A and 119 in a manner consistent with his authority to supervise “the unitary executive branch.” That means, he said, that his Administration would “withhold infor­mation the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.” At the same time, the President also brushed off section 756(e)(2), which requires the Attorney General to submit to the Congress recommendations for further legislation, by saying that the Administration will do so only when the President judges it “necessary and expedient” to do so.

In other words, contrary to the express requirements of the law he himself was signing into effect, the President declared that he will withhold information from Congress and the American people whenever he unilaterally declares that disclosure could impair the “deliberative processes” or “performance” of any part of the federal government, and that he will deign to talk to the People’s representatives in Congress only when he sees fit. This is the perfect expression of what Senator Feingold has so aptly called the Administration’s pre-1776 mentality.

The President’s signing statement poses two profound threats to our constitutional system of checks and balances. First, his unorthodox but repeatedly invoked unitary executive theory is really a unilateral executive theory. This President appears to believe that he can pick and choose which laws to obey and need never submit to congressional oversight. As we learned in an earlier signing statement, the President believes that the law against torture that he signed does not entirely bind him. And as we were reminded by Attorney General Gonzales’s recent stonewalling on the Administration’s domestic spying program, the Administration’s approach to congressional oversight is that it will tell Congress only what it chooses to tell Congress, and will refuse to divulge the “evolution” of its activities and legal theories.

Second, this President appears to hold a strange and novel view of the appropriate role of the President in the legislative process. The Constitution provides that legislation shall be presented by Congress to the President, who shall then either sign it into law or veto it. In other words, to borrow a familiar phrase, he must “vote it up or down” in its entirety, just as we do in Congress. If he vetoes it, a two-thirds majority in both Houses can override his veto.

Despite various threats on stem cells and Dubai Ports, for example, and despite having signed profoundly irresponsible fiscal and other legislation that should never have been enacted, this President has not vetoed a single bill in 5 years. Instead, he has repeatedly waited until legislation is final to issue “signing statements” that purport to pick and choose – usually on “unitary executive” grounds – which provisions he will deem himself bound by.

These signing statements are a clever device if Congress will let him get away with them. As he did with the torture legislation, the President can publicly take credit for signing popular legislation while in fact fighting it all the way and refusing to commit to abide by it. At the same time, he can sidestep a veto override. Instead of engaging constructively with Congress in the process of drafting and negotiating legislation, he can duck the responsibility of voting it up or down and ambush the congressional compromise after the fact.

This Administration’s “unitary executive” doctrine and the signing statements that articulate it are nothing short of a radical effort to re-shape the constitutional separation of powers and evade accountability and responsibility for following the law. We in Congress have a constitutional duty to prevent this. The President’s signing statements are not the law, and we should not allow them to be the last word. The President’s constitutional duty is to faithfully execute the laws as written by the Congress. It is our duty to ensure, by means of congressional oversight, that he does so.

In connection with the legislation we are now considering I have also recently written the Attorney General asking what the Bush-Cheney Administration’s theories of executive power mean in connection with our immigration laws. I ask that a copy of that letter be made part of the record. I have not received a timely reply for purposes of this Committee’s consideration of this legislation.

This is just the latest in a series of outright challenges to Congress by the Bush Administration. Recall the anger by Republican senators McCain, Warner and Graham in early January, 2006 when Bush declared that his war powers allowed his administration to waive the restrictions on the use of cruel, inhuman, and degrading treatment against detainees to protect national security.

'We believe the president understands Congress's intent in passing, by very large majorities, legislation governing the treatment of detainees," the senators said. ''The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our committee intends through strict oversight to monitor the administration's implementation of the new law."

Separately, the third primary sponsor of the detainee treatment law, Senator Lindsey O. Graham, Republican of South Carolina, told the Globe in a phone interview that he agreed with everything McCain and Warner said ''and would go a little bit further."

''I do not believe that any political figure in the country has the ability to set aside any . . . law of armed conflict that we have adopted or treaties that we have ratified," Graham said. ''If we go down that road, it will cause great problems for our troops in future conflicts because [nothing] is to prevent other nations' leaders from doing the same."

The White House did not return calls yesterday about the senators' statements. On Friday, in signing the ban on torture, Bush issued a ''signing statement," saying he would interpret the restrictions in the context of his broader constitutional powers as commander in chief. A ''signing statement" is an official document in which a president lays out his interpretation of a new law.

A senior administration official later confirmed that the president believes the Constitution gives him the power to authorize interrogation techniques that go beyond the law to protect national security. But in enacting the law, Congress intended to close every loophole and impose an absolute ban on all forms of torture, no matter the circumstances, Graham said.

David Golove, a New York University law professor who specializes in executive power issues, said the senators' statements ''mean that the battle lines are drawn" for an escalating fight over the balance of power between the two branches of government.

''The president is pointing to his commander in chief power, claiming that it somehow gives him the power to dispense with the law when he's conducting war," Golove said. ''The senators are saying: 'Wait a minute, we've gone over this. This is a law Congress has passed by very large margins, and you are compelled and bound to comply with it.' "

Elisa Massimino, Washington director of Human Rights First, said the senators' statement should send a clear warning to military and CIA interrogators that they would be subject to criminal prosecution if they abuse a detainee.

''That power [to override the law] was explicitly sought by the White House, and it was considered and rejected by the Congress," she said. ''And any US official who relies on legal advice from a government lawyer saying there is a presidential override of a law passed by Congress does so at their peril. Cruel inhuman and degrading treatment is illegal."

But Golove said that it is politically unlikely that Attorney General Alberto R. Gonzales would prosecute an official for taking an action Bush ordered him to take. Still, he said, Congress has a number of tools for compelling the president to obey the law. Congress can withhold funds for programs. It can subpoena administration officials to testify under oath. It can pass stricter laws or block legislation Bush needs. In an extreme and politically unlikely scenario, it can impeach the president.

Bush's interpretation of another detainee-related provision in the new law sparked further friction yesterday with some lawmakers.

The provision stripped courts of the jurisdiction to hear most lawsuits from detainees held at the US naval base at Guantanamo Bay, Cuba.

Citing that provision, the administration said this week that it would ask courts to dismiss more than 180 Guantanamo lawsuits.

"3 GOP senators blast Bush bid to bypass torture banReject assertion he has right to waive rules to protect US security"

And now, about two months later, here we are again, with a more in-your-face challenge, if that were possible. The same writer for the Boston Globe finds the following statements:

''The president's signing statements are not the law, and Congress should not allow them to be the last word," Leahy said in a prepared statement. ''The president's constitutional duty is to faithfully execute the laws as written by the Congress, not cherry-pick the laws he decides he wants to follow. It is our duty to ensure, by means of congressional oversight, that he does so."

The White House dismissed Leahy's concerns, saying Bush's signing statement was simply ''very standard language" that is ''used consistently with provisions like these where legislation is requiring reports from the executive branch or where disclosure of information is going to be required."

''The signing statement makes clear that the president will faithfully execute the law in a manner that is consistent with the Constitution," said White House spokeswoman Dana Perino. ''The president has welcomed at least seven Inspector General reports on the Patriot Act since it was first passed, and there has not been one verified abuse of civil liberties using the Patriot Act."

David Golove, a New York University law professor who specializes in executive power issues, said the statement may simply be ''bluster" and does not necessarily mean that the administration will conceal information about its use of the Patriot Act.

But, he said, the statement illustrates the administration's ''mind-bogglingly expansive conception" of executive power, and its low regard for legislative power.

''On the one hand, they deny that Congress even has the authority to pass laws on these subjects like torture and eavesdropping, and in addition to that, they say that Congress is not even entitled to get information about anything to do with the war on terrorism," Golove said.

Unlike Prof. Golove, I am not an expert on executive powers. I do not know what effect a presidential signing statement has on a piece of legislation. I suppose we will find out if somebody litigates it far enough.